Ali v Public Prosecutor of Bavaria Germany [2014] EWHC 3881 (Admin)

Case No CO/1577/2014

[2014] EWHC 3881 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 28 October 2014

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE AIKENS

MR JUSTICE MITTING

Between

ALIAppellant

Between

PUBLIC PROSECUTOR OF BAVARIA GERMANYRespondent

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Ltd (a Merrill Corporation Company)

8th Floor, 165 Fleet Street, London, EC4A 2DY

Tel: 020 7421 4043 Fax: 020 7404 1424

E-mail: mlsukclient@merrillcorp.com

(Official Shorthand Writers to the Court)

Mr P Caldwell (instructed by Abbeys Solicitors) appeared for Appellant

Mr B Seifert (instructed by CPS) appeared for Respondent

J U D G M E N T

[1]MR JUSTICE MITTING: The extradition of the Appellant is sought by an accusation European Arrest Warrant issued by the senior prosecutor of Bavaria on 19 August 2013.

[2]The underlying judicial decision is that of Augsburg of 30 April 2013 and described in box B of the warrant as "investigation arrest warrant" pursuant to an enforceable judgment with a reference number "61GS1737/13".

[3]The warrant concerns four offences of missing trader intra-community fraud, at the heart of which are said to be two German nationals Willberger and Regina Ostermeier. The Appellant is alleged to have acted within a ring organised by them as a missing trader. He is alleged to have done so by operating a German limited company Outstanding Trade GmbH with a registered office in Aachen which was also registered for taxation purposes in Aachen.

[4]Between February 2012 and May 2012 inclusive, the warrant alleges that it failed to file four monthly VAT returns, hence the four charges, accounting for just under 7.5 million Euros worth of output tax. Box E of the warrant identifies the crime of participation in a criminal organisation and tax evasion. The maximum sentence is ten years and five years' imprisonment respectively.

[5]The warrant was certified by SOCA on 27 August 2013. The Appellant was arrested on 26 October 2013. After a contested hearing, his extradition was ordered by District Judge Evans in a reserved judgment dated 1 April 2014. Before then, on 29 October 2013, District Judge Alison Rose had determined that, contrary to his assertion, the Appellant was the person identified in the warrant.

[6]Four grounds of challenge were raised before District Judge Evans:(1) the warrant did not comply with section 2 of the Extradition Act 2003 because it did not state that it was issued for the purpose of prosecuting the Appellant for the offences;

(2) the offences were not extradition offences;

(3) extradition was barred by reason of forum;

(4) extradition would be incompatible with the right of the Appellant and his family to respect for their family and private life under

Article 8 of the European Convention

. Only (1) and (4) are pursued in this appeal.

[7]As to (1), District Judge Evans construed the warrant as a whole as derived by the principles explained in Balzas Asztaslos v Hungary

[2010] EWHC 237 (Admin)

at paragraph 28. He noted that on its face, the warrant stated:

"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

He noted that the Appellant was described in the document, in its English translation, throughout as "the defendant".

[8]Mr Caldwell submits on appeal -- he did not appear below -- that upon its proper construction, this warrant is not and has not been shown to be an accusation warrant whose terms comply with the requirements of section 2(3) of the 2003 Act. That requires that an accusation warrant must contain a statement:

"that - (a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence."

[9]He submits that the reference in box B to the type of underlying judicial decision as "investigation arrest warrant" demonstrates that either the warrant was issued for the purpose of investigation and questioning, or that it might well be, and, in either event, the warrant, therefore, does not satisfy the requirements of section 2(3).

[10]Similar arguments persuaded Nicola Davies J that the warrant did not satisfy the requirements of section 2(3) in Khan and Ors v Prosecutor's Office Bavaria, Germany

[2014] EWHC 1704 (Admin)

. It is unnecessary to undertake a detailed comparison of the facts as alleged in the warrants considered by Davies J and those set out in the warrant here.

[11]In my judgment, the matter should be approached as one of principle. The German judicial authorities can be taken to understand the fundamental principles underlying the Framework Decision. That decision is intended to facilitate the easy and speedy extradition of individuals from one Member State to another for two and only two purposes: to prosecute them and to require them to serve the unexpired term of a sentence of imprisonment imposed upon them, hence respectively the shorthand "accusation and conviction warrants".

[12]Section 2(3) requires the warrant to state on its face the matters that are there set out. This warrant does state that on its face. It does so, it is true, in terms which leave open the alternative that the German authorities might be requesting the extradition of the Appellant to serve a sentence of imprisonment.

[13]But as my Lord Aikens LJ explained in Asztaslos v Hungary

[2011] 1 WLR 252

at paragraph 28, the warrant must be construed as a whole. A glance at this warrant will demonstrate that it is not a conviction warrant. Therefore, what the German authorities are certifying is that it is an accusation warrant. It is a warrant issued to secure the surrender of the Appellant for the purpose of conducting a criminal prosecution against him.

[14]Its terms are consistent with that. The Appellant is described in the original German text as a "beschuldigter" which, in commonly used dictionaries, is translated as "accused", for which "defendant" is a perfectly acceptable synonym. Both words signify that the individual thus named is the subject of a process of criminal prosecution in a civil law state.

[15]Secondly, the original German description of the underlying type of warrant is "untersuchungshaftbefehl". That is a composite German word. "Haftbefehl" means warrant. "Untersuchung" can be translated into English as "examination, scrutiny or investigation".

[16]Anyone reading this warrant in, as my Lord put it, a "cosmopolitan" sense and not with the narrow focus of an English lawyer would immediately appreciate that this is a warrant issued at the start of a civil law criminal process in which the investigating judge or judge of the first instance is commencing the prosecution against the individual. In civil law systems, the defendant or accused is engaged at the earliest stage in the process and is invited to put his arguments and, if he chooses, evidence for consideration by the investigating judge.

[17]For an English court to apply a narrow English construction of a single phrase used in what is described on its face as an accusation warrant "investigation arrest warrant" as indicating that the German authorities might only require the extradition of the Appellant to be questioned as a suspect would be, in my judgment, to assume a degree of ignorance on the part of the German judicial authorities, or even of bad faith, which is simply not warranted.

[18]If the German judicial authority had been unwise enough to use the process for the purpose of questioning a suspect, they would, no doubt, have included in the German text the German word for suspect, "Verdächtige". Accordingly, I have no doubt at all that this warrant is properly issued for the purpose of conducting a criminal prosecution against the Appellant.

[19]In reaching that conclusion, I have, I acknowledge, differed from a conclusion reached by Nicola Davies J in the case to which I have referred on facts that are, superficially at least, not that dissimilar from those in this case. I believe that it is right, in principle, to do so and I have expressed my reasons for doing so.

[20]I would add only this on this aspect of the appeal. Section 12A of the 2003 Act is now in force. It requires a requesting state to demonstrate that the individual has been charged before an English court can order his extradition. If my understanding of the German Code of Criminal Procedure of 1987 is correct, the German judicial authorities will have no difficulty in demonstrating that an individual has been charged.

[21]Section 134 of the code provides that, in English translation:

"(1)It may be ordered that the accused be brought before the court immediately if reasons exist which would justify the issuance of a warrant of arrest. (2) The order shall precisely describe the accused and the criminal offence with which he is charged; the reason for his being brought before the court shall be indicated."

Section 136 then goes onto set out what should happen once an accused has been brought before the court after a warrant of arrest has been issued:

"(1)At the commencement of the first examination, the accused shall be informed of the offence with which he is charged and of the applicable criminal law provisions. He shall be advised that the law grants him the right to respond to the charges, or not to make any statement on the charges, and the right, at any stage, even prior to his examination, to consult with defence counsel of his choice."

It goes onto provide that he is to be advised of other legal rights as well.

[22]None of this was in evidence before the District Judge and I have looked at it de bene esse. In the light of section 12A, it might now, in cases such as this, be advisable for requesting states with a civil law criminal procedure to indicate the provisions of their procedure which establish that the individual has, indeed, been charged and is not merely a suspect required for questioning. That deals with the principle point on appeal.

[23]There is, as almost always in these cases, an Article 8 challenge as well. Before the District Judge, several aspects of the Appellant's family and private life were advanced, including evidence about his health and an assertion that he posed a suicide risk. None of this is any longer relied upon. What is submitted is simply that the Appellant is the indispensable bedrock of his family; of his wife, who is emotionally and financially dependent upon him; of their 24 year old daughter, who still maintains close ties with the family; and of his 4 and a half year old son, as it was put before the District Judge, but nephew as we now know him to be.

[24]The District Judge had no difficulty in finding that the right to respect for family and private life of the Appellant and his family was substantially outweighed by the need for the United Kingdom to abide by its Treaty obligations. I see no error in his reasoning and agree with it. For those reasons, I would dismiss this appeal.

LORD JUSTICE AIKENS: I agree. Thank you both very much.

[26]MR CALDWELL: My Lords.

[27]MR SEIFERT: My Lords, given the important references that were made regarding section 12A, I would ask for an expedited transcript of this judgment, if that were possible.

LORD JUSTICE AIKENS: Why?

[29]MR SEIFERT: I am myself in a case next week in which section 12A is being argued. Given what my Lord Mitting J has just said, there might be a different approach to that case. It is a very similar case, but section 12A is argued so --

LORD JUSTICE AIKENS: That is a case where section 12A applies.

[31]MR SEIFERT: Yes, it does.

LORD JUSTICE AIKENS: Well, are you prepared to pay for it, the expedited transcript?

[33]MR SEIFERT: Once I obtain those instructions, if that is possible, I --

LORD JUSTICE AIKENS: That will be the only basis upon which you could have it, Mr Seifert.

[35]MR SEIFERT: Yes. Yes, I am grateful.

LORD JUSTICE AIKENS: If you are prepared to pay for it and my Lord has the time to have a look at it and to correct anything he wants to correct in it, then you can have it, but I do not guarantee that you will get it. They are not particularly good, transcribers, at being able to produce them that quickly because they have so many others that they have to produce.

[37]MR SEIFERT: Yes.

LORD JUSTICE AIKENS: But you can certainly try.

[39]MR SEIFERT: I am grateful.

LORD JUSTICE AIKENS: Thank you.

[41]Thank you both very much.